Tags » copyright

Last Tuesday, in the case of Kirtsaeng vs. John Wiley & Sons, the Supreme Court ruled 6-3 to uphold the “first sale” doctrine for materials purchased from non-U.S. sources. This ruling allows legal purchasers of copyrighted material from overseas to continue to subsequently resell, loan, rent, etc., copyrighted material. The first sale doctrine, in general, is the exemption that allows libraries to loan books to borrowers, video stores (those that are left) to rent DVDs, or individuals to loan or resell a book or CD or other copyrighted work to someone else without fear of running afoul of the normal protection afforded to copyright holders to control the sale and distribution of their copyrighted content.

At issue in the Kirsaeng case was whether or not materials purchased overseas were subject to this exemption, or if the exemption applied only to those copyrighted materials purchased within the United States. The plaintiff, publisher John Wiley & Sons, argued that the exemption did not apply to works intended to be sold overseas, and that the defendant, a graduate student named Supap Kirtsaeng, had violated copyright law by purchasing textbooks in Thailand intended for that market (and sold there at a lower price than in the U.S.) and then reselling them in the United States to help finance the cost of his graduate education.

Why is this important for Middlebury? Because Middlebury libraries purchase at least 10% (by cost) of our material from overseas vendors. (This is a conservative estimate based on our expenditures with our primary foreign dealers; the actual percentage is certainly higher, although probably not by much.) If this case had been decided differently, there would be considerable doubt as to whether we could continue to loan materials purchased overseas without some sort of legislative intervention that specifically allowed it.

I recently traveled to Baltimore to spend three days among “my people” at the Center for Intellectual Property symposium. My people, of course, are those who spend a lot of their professional lives thinking about copyright. Just a few weeks before the conference began, the long-awaited Georgia State e-reserves opinion was handed down. Perfect timing for this crowd. It was the talk of the conference, as was the Code of Best Practices in Fair Use for Academic and Research Libraries, which was released earlier this year. I’d previously taken several online courses through the CIP and was thrilled to see these engaging teachers, thinkers, and defenders of Fair Use in person. Plus my hotel room had a view of Camden Yard and I got to enjoy the National Aquarium on my way out of town. And I might have had a few crab cakes. Many of the talks were recorded and video is available online. My brief summaries of the talks are below.

Lawrence’s talk focused on the fact that scholarly research is not available to the vast majority of people. It’s hidden behind paywalls, accessible only to the “knowledge elite” who are affiliated with certain privileged schools with enough purchasing power. He believes that scholars should be outraged by this fact. He’s one of the founders of the Creative Commons and a very engaging speaker.

“The Elephant in the Room”
Peggy Hoon, Scholarly Communications Librarian University of North Carolina at Charlotte and CIP’s Virtual Intellectual Property Scholar

Peggy spoke about nonprofit mass digitization projects and her primary example was the (fantastic and groundbreaking) Grateful Dead Archive at UC Santa Cruz. Technological capabilities are rushing ahead while copyright law is static and lagging. The reality is that we can’t wait for the law to catch up with the technology – we need to make on-the-ground guidelines for ourselves if we are to proceed with preserving scholarly materials and making them available to users. The Grateful Dead archive contains a variety of materials – text, recordings, artwork, t-shirts – and became extremely labor intensive to digitize due to a lack of consensus of best practices. Peggy hopes that other schools embarking on mass digitization projects will post their guidelines and best practices publicly so these things aren’t behind closed doors.

“A Code of Best Practices in Fair Use”
Brandon Butler, Director of Public Policy Initiatives, Association of Research Libraries
Patricia Aufderheide, University Professor, American University School of Communication

Brandon and Patricia are two of the co-facilitators of the Code of Best Practices in Fair Use for Academic and Research Libraries and I admire their work greatly. I was already quite familiar with the Code but was interested to hear them speak a little more about what constitutes transformative use, ways to manage risk, and the importance of documenting the principles and practices of an individual community. They also spoke about the GSU opinion and countered some common arguments by publishers regarding Fair Use.

“JeopARTy: Teaching Ethics and Law of Artistic Appropriation”
Paul Dobbs, Library Director, Massachusetts College of Art and Design

Paul gave us a taste of how the MassArt librarians teach their students about Fair Use. An interactive session where we discussed what is fair vs. ethical vs. legal, what is parody or homage, what is plagiarism. A recent example of this issue was the artist Shepard Fairey’s use of an AP photo to create his Obama “HOPE” poster. Several other similar (although not as high profile) examples followed and it was fascinating to see how everyone in the room felt about certain appropriations of another artist’s work.

The Georgia State decision was touched on of course, and a host of acronyms you’ve probably heard of – DMCA, PIPA, SOPA, TPP – were discussed as well. This session was less successful than the others because the subject matter was so varied and complex and there just wasn’t much time to delve into any one topic. We could have spent the entire hour on SOPA alone.

“Emerging Issues in Copyright Law”
Karyn Temple Claggett, Senior Counsel for Policy and International Affairs, United States Copyright Office

Everyone was very excited to have a representative from the Copyright Office at the conference, and attendees came prepared with their tough questions. Karyn spoke about addressing online piracy in a way that still protects free speech and expression. She hopes that orphan works legislation will be helpful. She’s currently working on a way for people to deal with small claims of copyright violation without spending six figures on legal fees. Her team is also revamping the Copyright Office website to create better tools for the public.

“Panel of Professionals”: from Purdue University, Baltimore City Public Schools, and ARTstor

A general panel discussion on Fair Use that tackled a wide range of topics. Panelists shared favorite books and blogs, commiserated about struggles, and urged everyone to read, participate, and understand all sides so we can help and guide our constituents.

Faculty, before you sign that next publishing contract, read the information about retaining your author rights by adding an addendum to your publisher’s contract. Links to this information may be found at the bottom of the LIS for Faculty page (shortcut http://go/lis4faculty). Or you can use these direct links:

This is from one of the lists that I am on, and seemed worthy of broader distribution via the LIS Blog.

The Association for Information and Media Equipment has recently challenged one of our institution’s copyright compliance regarding the posting of video on university servers for instruction. As we understand it from the press, this challenge has resulted in the institution no longer posting the video for fear of legal action.

This situation echos previous instances when content owners have threatened our institutions with litigation for infringement, for example the various institutions whom the American Association of Publishers approached regarding e-reserves and course management systems a few years ago. It differs from the peer to peer aspect of copyright significantly because, apart now from HEOA compliance, our colleges and universities did not have liability as conduit service providers, i.e. the allegedly infringing material was not being served from our servers, we acted only as I.S.P.s. Thus, this current matter is serious. Not only does it threaten exorbitant legal expenses and damages in both dollars and reputation, by touching instruction it threatens the exercise of our missions.

Please take a moment to learn more about this matter, as we are learning about it, and most especially talk with your colleagues at home and around the community. It may be that higher education must approach the issue from a range of positions (standing firm on fair use, understanding better the opportunities and limitations of the Teach Act, proactively and collectively arranging for licensing are some examples that jump quickly to mind) but what is absolutely critical is that we do so as a community, working to help each other to preserve our missions.